The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LEON MCQUAY,
Plaintiff,
v. Case No.: 8:22-cv-2246-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Leon McQuay seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for
a period of disability and disability insurance benefits. The Commissioner filed the
Transcript of the proceedings (“Tr.” followed by the appropriate page number), and
the parties filed legal memoranda setting forth their positions. As explained below,
the decision of the Commissioner is AFFIRMED under § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, Standard of Review, Procedural
History, and the Commissioner’s Decision
A. Social Security Eligibility
The law defines disability as the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death, or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the administrative law judge, but must consider
the evidence as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011) (citation omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of
fact, the Commissioner’s conclusions of law are not presumed valid and are
reviewed under a de novo standard. Keeton v. Dep’t of Health & Hum. Servs., 21
F.3d 1064, 1066 (11th Cir. 1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331,
2021 WL 2838362, at *2 (11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The
[Commissioner’s] failure to apply the correct law or to provide the reviewing court
with sufficient reasoning for determining that the proper legal analysis has been
conducted mandates reversal.” Keeton, 21 F.3d at 1066.
The Commissioner must follow five steps in evaluating a claim of disability.
20 C.F.R. §§ 404.1520, 416.920. At the first step, the Commissioner must determine
whether the claimant is currently engaged in substantial gainful employment. 20
C.F.R. § 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the
Commissioner must determine whether the impairment or combination of
impairments from which the claimant allegedly suffers is “severe.” 20 C.F.R. §
404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii), (c). At step three, the
Commissioner must decide whether the claimant’s severe impairments meet or
medically equal a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii), (d); 20 C.F.R.
§ 416.920(a)(4)(iii), (d). If the Commissioner finds the claimant’s severe
impairments do not meet or medically equal a listed impairment, then the
Commissioner must determine whether the claimant has the residual functional
capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform his past relevant work, the Commissioner must
determine at step five whether the claimant’s RFC permits him to perform other
work that exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g),
416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
C. Procedural History
Plaintiff applied for a period of disability and disability insurance benefits on
May 11, 2020, alleging disability beginning October 1, 2019. (Tr. 84, 189-90).
Plaintiff later amended the alleged onset date to October 31, 2019. (Tr. 15, 44). The
application was denied initially and on reconsideration. (Tr. 84, 92). Plaintiff
requested a hearing and on September 28, 2021, a hearing was held before
Administrative Law Judge Amber Downs (“ALJ”). (Tr. 34-71). On December 22,
2021, the ALJ entered a decision finding Plaintiff had not been disabled from
October 31, 2019, through the date of the decision. (Tr. 15-28). On July 29, 2022,
the Appeals Council denied Plaintiff’s request for review. (Tr 1-5).
Plaintiff began this action by Complaint (Doc. 1) filed on October 1, 2022,
and the case is ripe for review. The parties consented to proceed before a United
States Magistrate Judge for all proceedings. (Doc. 11).
D. Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff meets the insured status requirements
of the Social Security Act through December 31, 2024. (Tr. 17). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since October 31, 2019, the alleged onset date. (Tr. 17). At step two,
the ALJ found that Plaintiff had the following severe impairments: “spine disorders
including degenerative disc disease in the cervical and lumbar spine, degenerative
joint disease status-post knee replacement, obesity, neuropathy, and hypertension.”
(Tr. 18). At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526). (Tr. 18).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 [C.F.R.
§] 404.1567(b) except that the claimant has the residual
functional capacity to perform less than full range of light work
except lifting 20 pounds occasionally and 10 pounds
frequently, carrying 20 pounds occasionally and 10 pounds
frequently, sitting for 6 hours, standing for 6 hours, walking for
6 hours with the ability to push and pull as much as can lift and
carry. He can operate foot controls with right foot frequently,
he can operate foot controls with left foot frequently. He can
operate hand controls with right hand frequently, he can
operate hand controls with left hand frequently. The claimant
can handle items frequently with the left hand, but he has
fingering limitations frequently with the left hand. The
claimant can climb ramps and stairs frequently, never climb
ladders, ropes, or scaffolds, balance frequently, stoop
frequently, kneel frequently, crouch frequently, crawl
frequently. The claimant can work at unprotected heights
occasionally, moving mechanical parts occasionally, in
extreme cold frequently, in vibration occasionally.
(Tr. 19).
At step four, the ALJ determined that Plaintiff was not capable of performing
his past relevant work as a material handler, machine maintenance servicer, forklift
operator, and panel board operator. (Tr. 27). At step five, the ALJ found that
considering Plaintiff’s age (49 years old on the alleged disability onset date),
education (at least high school), work experience, and RFC, there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform.
(Tr. 27-28). Specifically, the vocational expert testified that a person with Plaintiff’s
limitations could perform such occupations as:
(1) mail sorter, DOT1 209.687-026, light, SVP 2
(2) parking lot attendant, DOT 915.473-010, light, SVP 2
(3) tap room attendant, DOT 312.677-010, light, SVP 2
(Tr. 28). The ALJ concluded that Plaintiff was not under a disability from October
31, 2019, through the date of the decision. (Tr. 28).
II. Analysis
On appeal, Plaintiff raises two issues:
(1) Whether the ALJ erred in failing to address Plaintiff’s complaints of
frequent urination; and
(2) Whether the ALJ erred in relying on a response from a vocational
witness to an incomplete or vague hypothetical.
(Doc. 13, p. 3, 4).
A. Complaints of Frequent Urination
Plaintiff contends that the ALJ erred in failing to discuss Plaintiff’s complaint
of frequent urination. (Doc. 13, p. 3-4). As Plaintiff points out, at the hearing Plaintiff
responded to a question about whether he goes grocery shopping by stating that he
1 DOT refers to the Dictionary of Occupational Titles.
is diabetic and, “I have to use the bathroom a lot, so I try not to, again, put myself in
situations where I’m going to wet my pants or wet myself up.” (Tr. 63). Plaintiff
acknowledges that there is no testimony or evidence about the frequency of
urination. (Doc. 13, p. 4).
Prior to step four, the ALJ must assess Plaintiff’s RFC, the most he can do
despite his limitations. 20 C.F.R. § 404.1545(a). It consists of a claimant’s
“impairment(s), and any related symptoms, such as pain, [that] may cause physical
and mental limitations that affect what [a claimant] can do in a work setting.” 20
C.F.R. § 404.1545(a). An ALJ will “assess and make a finding about [the claimant’s]
residual functional capacity based on all the relevant medical and other evidence” in
the action. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), (3). The ALJ must consider
all of a claimant’s medically determinable impairments, including those that are not
“severe.” 20 C.F.R. § 404.1545(a)(2); Schink v. Comm’r of Soc. Sec., 935 F.3d 1245,
1268 (11th Cir. 2019). “The ALJ makes this determination by considering a
claimant’s physical, mental, and other abilities affected by the impairment.” Id.
(citing 20 C.F.R. § 404.1545(b)-(d)).
Here, Plaintiff argues the ALJ erred by not considering the frequency of
Plaintiff’s need to urinate in assessing Plaintiff’s RFC. Plaintiff cites no medical
records that support Plaintiff this complaint. And, as the Commissioner contends,
Plaintiff informed his doctors that he had no issues with frequent urination. (See Doc.
14, p. 4 (citing Tr. 323,331, 344, 351, 357, 961)). Plaintiff also includes some
medications he takes that could be diuretics, but again, Plaintiff cites no medical
records that support the notion that these medications cause frequent urination issues
for Plaintiff. Without more, substantial evidence supports the ALJ’s decision as to
consideration of Plaintiff’s medically determinable impairments and limitations
from them.
B. RFC Language and Hypothetical to Vocational Expert
Plaintiff argues that the language of the RFC is vague as to Plaintiff’s left hand
and fingering. (Doc. 13, p. 6-7). Plaintiff also argues that the hypotheticals the ALJ
posed to the vocational expert were incomplete and vague as to sitting, standing, and
walking, causing the vocational expert’s testimony to be unreliable. (Doc. 13, p. 7-
8).
Starting with the left hand and fingering, in the RFC, the ALJ found, among
other things: “He can operate hand controls with right hand frequently, he can
operate hand controls with left hand frequently. The claimant can handle items
frequently with the left hand, but he has fingering limitations frequently with the left
hand.” (Tr. 19). Plaintiff argues that the “but” implies that Plaintiff cannot frequently
finger with the left hand. (Doc. 13, p. 6). Alternatively, Plaintiff argues that this
language is confusing. (Doc. 13, p. 6). In the context of the RFC, the ALJ was
discussing limitations for both the right and left hands. (Tr. 19). The ALJ limited the
right hand to frequently for hand controls. But she limited the left hand more by
limiting the left hand to frequently for handling and, in addition, to frequently for
fingering. (Tr. 19). There is no ambiguity in this statement.
Plaintiff also argues that the RFC and hypothetical are vague because the ALJ
limited Plaintiff to sitting for 6 hours, standing for 6 hours, walking for 6 hours. (Tr.
19, 66-67). Plaintiff claims that there are various way to read these limitations. (Doc.
13, p. 7). Plaintiff contends that one way is that he could be on his feet the entire
workday, except for normal breaks. (Doc. 13, p. 7). Another way is that Plaintiff
would be on his feet for a total of 6 hours either standing, walking, or any
combination thereof, but must be able to perform the job sitting, intermittently, the
remaining two hours. (Doc. 13, p. 7).
At step five of the sequential evaluation, the ALJ must determine whether jobs
exist in significant numbers in the national economy that a plaintiff can perform.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). To make
this determination, an ALJ may obtain the testimony of a vocational expert. Id. For
the vocational expert’s opinion to constitute substantial evidence, “the ALJ must
pose a hypothetical question which comprises all of the claimant’s impairments.” Id.
(citing Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)). “If the ALJ
presents the vocational expert with incomplete hypothetical questions, the vocational
expert’s testimony will not constitute substantial evidence.” Jacobs v. Comm’r of
Soc. Sec., 520 F. App’x 948, 950 (11th Cir. 2013). But an ALJ is not required to
include findings in the hypothetical that the ALJ found to be unsupported by the
record. Lee v. Comm’r of Soc. Sec., 448 F. App’x 952, 953 (11th Cir. 2011) (citing
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004)).
The Court agrees with the Commissioner that these limitations mirror
limitations for light work, which require standing, walking, or both, for up to six
hours throughout the workday, citing SSR 83-10, 1983 WL 31251, at *6. (Doc. 14,
p. 6). So even if the ALJ found that Plaintiff could stand and walk for 12 hours –
which seems highly unlikely – the jobs listed by the vocational expert are jobs at the
light exertional level, thereby requiring standing, walking, or both, for up to six
hours in an 8-hour workday.
Plus, the Court also agrees with the Commissioner that there was no indication
at the hearing that the vocational expert did not understand the ALJ’s hypotheticals.
Nor did Plaintiff’s attorney request clarification from the ALJ or from the vocational
expert. See Pena v. Saul, No. 8:19-cv-2122-T-TGW, 2020 WL 5525628, at *3 (M.D.
Fla. Sept. 15, 2020) (finding no reversible error when counsel should have objected
at the administrative hearing or questioned the vocational expert about the
limitations in the hypothetical posed to the vocational expert) (citing Denomme v.
Comm’r, Soc. Sec. Admin., 518 F. App'x 875, 879 (11th Cir. 2013)); see also Thomas
v. Comm’r of Soc. Sec., No. 3:19-cv-620-J-PDB, 2020 WL 5810219, at *4 (M.D.
Fla. Sept. 30, 2020) (finding no error when Plaintiff failed to provide authority
compelling a more detailed hypothetical to the vocational expert). Thus, substantial
evidence supports the RFC and the hypotheticals posed to the vocational expert.
III. Conclusion
For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on December 21, 2023.
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties